Re Haque Fataul Alias Masood a K M

CAMP 84/2020

[2021] HKCA 1407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 84 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 635 OF 2018)

________________________

________________________

Before:  Hon Yuen and Au JJA in Court

Date of Written Submissions:  1 March 2021

Date of Judgment:  27 September 2021

________________________

J U D G M E N T

________________________

Hon Yuen JA (giving the Judgment of the Court):

1.This court (Hon Yuen and Au JJA)  handed down judgment on 12 January 2021 ([2021] HKCA 31)  (“the Judgment”)  dismissing the applicant’s application to extend time to appeal against an order of DHCJ Bruno Chan (“the Judge”)  given on 4 December 2019 refusing an extension of time for, and dismissing, his application for leave to apply for judicial review in respect of a non-refoulement claim (“the Judge’s Decision”).

2.On 16 December 2019, the applicant had filed a summons before the Court of First Instance for leave to appeal against the Judge’s Decision, which the Judge dismissed on 24 June 2020. As explained in the Judgment, following H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22, decided on 14 July 2020, the applicant was entitled to appeal the Judge’s Decision and order refusing an extension of time as of right and accordingly, this Court treated the summons in CAMP 84/2020 filed on 6 July 2020 as an application for extension of time to appeal the Judge’s Decision.

3.For reasons set in the Judgment, we dismissed the applicant’s summons. 

4.On 16 February 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as s.24(2)  of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”)  Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The last day for filing the Notice of Motion expired on 9 February 2021. 

5.However, under s.24(5)  and s.24(6)  of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

6.In the present case, the applicant was late by 1 week.  In the applicant’s supporting affirmation filed on 16 February 2021, he explained that he did not receive the Judgment within the time stipulated for appeal.  This is a mere assertion, and there is no evidence (eg a postmark)  in support of it.  It is most unlikely that the Judgment would have taken more than 28 days to be delivered in the post.

7.In any event, as to the merits of the intended appeal, the applicant advanced the following in the Notice of Motion filed on 16 February 2021:

“I would like to infomr (sic)  the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and cours (sic)  prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary (sic)  a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

8.On 19 February 2021, the Registrar of Civil Appeals directed that the applicant shall lodge his written submissions on or before 2 March 2021, and the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper. 

9.The applicant lodged his written submissions on 1 March 2021 in which he quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115)  which concerns late filing of a notice of appeal to the Board. However, he did not explain how the aforesaid cases and statutory provision were related to or would assist his case.

10.Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.The applicant’s intended appeal has no merit at all.  No question of great general or public importance has been identified as required by s.22(1)(b)  of the HKCFAO.    

12.Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

13.By reason of the above, the Notice of Motion filed on 16 February 2021 is dismissed.

The applicant, unrepresented, acting in person